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JUDICIAL CONDUCT COMMITTEE
Ref no: JSC/87/08/2024
In the matter between:
XIONG CHANGSEN COMPLAINANT
and
JUDGE DEREK WILLE RESPONDENT
Date: 2 September 2026
Decision: The appeal is dismissed.
RULING ON APPEAL
THE JUDICIAL CONDUCT COMMITTEE (JAFTA J, MAJIEDT J AND
SALDULKER JA)
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Introduction
[1] This appeal is being brought under section 15(5) of the Judicial Service
Commission Act, 9 of 1994, as amended (the Act). It concerns the dismissal of a
complaint by Mr Xiong Changsen, the complainant . The Acting Chairperson of
the Judicial Conduct Committee (the JCC) dismissed Mr Changsen’s complaint
in terms of section 15(2)(c) of the Act.1 Under the Act, complaints against Judges
must be lodged with the JCC. The Chairperson of the JCC is required to
determine, at the first stage, the provisions of the Act in terms of which each
complaint may be processed. 2 Lesser complaints may be summarily dismissed
under section 15, as has happened here.
Background
[2] The essence of the complaint is one of an alleged unfair trial and what the
complainant terms “unfair judicial discretion”. It must be noted at the outset that
Mr Changsen is a Chinese national, and English is not his first language.
Unsurprisingly, as Mr Changsen is a lay person in the law, the averments in his
papers are not easy to follow. The papers are unnecessarily prolix, contain
repetitive and irrelevant averments and submissions, and include many
unnecessary documents.
1 In relevant part, section 15 reads:
“15(1)(a) If the Chairperson or the Head of Court designated in terms of section 14(2) is of the view that the
complaint falls within the parameters of the grounds set out in subsection (2), he or she must dismiss the complaint.
…
(2) A complaint must be dismissed if it-
…
(c) is solely related to the merits of a judgment or order;
…
(5) A complainant who is dissatisfied with a decision to dismiss a complaint in terms of subsection (1) may, within
one month after receiving notice of that decision, appeal to the Committee in writing against that decision,
specifying the grounds for the appeal”.
2 Section 14(2) of the Act provides: “When a complaint is lodged with the Chairperson in terms of subsection (1),
the Chairperson must deal with the complaint in accordance with section 15,16 or 17, but in the event of a
complaint falling within the parameters of section 15, the Chairperson may designate a Head of Court to deal with
the complaint, unless the complaint is against the Head of Court”.
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[3] The genesis of the complaint against the respondent, Judge Derek Wille of
the High Court, Cape Town, sitting as an Equality Court, stems from Mr
Changsen’s encounters with the South African Police Service. The following
appears from the case heard before Judge Wille. Mr Changsen was arrested twice
in 2008 and once in 2011. According to Mr Changsen, on these occasions,
warning statements were taken from him, but no interpreter was present to advise
him of his procedural rights.
[4] A further complaint concerns the previous legal representatives who had
acted for Mr Changsen during the two criminal matters. In those matters, he was
charged in one with the illegal trading in or illegal possession of elephant ivory,
and in the other with stealing or receiving stolen electronic goods . The papers
indicate that Mr Changsen pleaded guilty to the charges in the two cases . Mr
Changsen averred that he did not voluntarily plead guilty to these offences. An
interpreter was present during these cases.
[5] The case in the Equality Court appears to have been filed by the South
African Human Rights Commission (SAHRC) on Mr Changsen’s behalf. At
some point, however, the SAHRC withdrew from the case. Mr Changsen w as
eventually represented by a lawyer appointed by Legal Aid South Africa.
[6] Judge Wille had to decide a limited issue in th e case – whether the Court
had the requisite jurisdiction to determine Mr Changsen’s complaints. The
Ministers of Justice and Correctional Services and of Police were the first and
second respondents, respectively. The equality challenge brought by Mr
Changsen was one of unfair discrimination. The main allegation was that there
had been unfair discrimination against him by the criminal justice system on two
grounds:
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(a) that he was discriminated against , because he was unable to properly
communicate in his language from the time of his arrest until the criminal
convictions were returned against him; and
(b) that this discrimination was based on his nationality.
[7] Mr Changsen sought specific relief, first, that his matter be heard in the
Pretoria High Court , because of its proximity to the headquarters of the
respondents cited in his application. He also sought 30 million US dollars in
compensation for injury to dignity, lost income and unlawful incarceration. He
further sought judicial review of the two criminal trials concluded against him
and the setting aside of the two convictions returned against him. Finally, he
wanted an apology from the respective respondents.
[8] Judge Wille noted that the relief of a judicial review of the criminal
convictions and the sentences imposed upon Mr Changsen was difficult to
understand, as he had tendered a plea of guilty to the offences upon which he was
convicted in the lower courts. The Judge also noted that Mr Changsen was legally
represented during these proceedings. Furthermore, d uring the hearing of th e
limited jurisdiction issue in the Equality Court, his legal representative informed
the Court that Mr Changsen was, in any event, pursuing a condonation application
and an appeal against his convictions and sentences.
[9] After considering the applicable law, Judge Wille summarised Mr
Changsen’s case thus. Mr Changsen’s allegations entailed that he:
(a) was unlawfully assaulted by the police;
(b) was never informed of the charges preferred against him;
(c) was unlawfully detained;
(d) was forced to make certain admissions against his will; and
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(e) was tried in a language that he did not understand, as the proceedings were
not interpreted into his language.
[10] The respondents advanced the defence that the affidavits supporting Mr
Changsen’s application did not set out any alleged acts of discrimination, and thus
did not establish a cause of action to justify a finding in support of the relief
sought. This was because neither the first nor the second respondent played any
role in the actual court process regarding the guilty pleas tendered by the
applicant. The respondents further argued before Judge Wille that instead of
bringing the equality claim, Mr Changsen should have instituted a claim for
damages in delict and pursue d a judicial review or appeal in respect of his
criminal convictions and sentences.
[11] Judge Wille upheld the respondents’ main defences. The Judge held that it
is trite that this species of equality relief may not be claimed where a clear and
compelling alternative remedy was readily available to the applicant. According
to the Judge, the relief was being claimed to camouflage the actual cause of
action. This was borne out by the recordal during argument that Mr Changsen
was pursuing applications for condonation and leave to appeal in respect of his
convictions and sentences.
[12] Judge Wille held, further, that the declaratory orders sought would not have
any practical effect , because the relief sought was academic. This was because
any claim for damages, constitutional or otherwise, ha d prescribed due to the
effluxion of time; and Mr Changsen had, in any event, failed to give the requisite
statutory notice to institute claims against the respondents.
[13] With regard to jurisdiction, the Judge noted that, under the applicable
equality legislation, the proceedings are meant to be expeditious, and the
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remedies are to be corrective, restorative, and deterrent. 3 Judge Wille held that
the only complaint that may attract the jurisdiction of the Equality Court was the
allegation that Mr Changsen was unfairly discriminated against based on race,
ethnicity, and language. But, held the Judge, there was no evidential basis at all
for these averments. Absent specific allegations, no prima facie case had been
established against the respondents. Accordingly, held Judge Wille, the alleged
acts of unfair discrimination d id not attract th e C ourt's jurisdiction . The
application was thus dismissed, with no order as to costs.
The complaint
[14] Regarding the proceedings before Judge Wille, the complaint is that no
court interpreter was provided, despite Mr Changsen's request. He avers that, as
a consequence, he did not understand what was happening in Court. It would
appear that on the previous two occasions when the matter was in the High Court,
it could no t proceed due to the absence of an interpreter. Mr Changsen has
attached copies of email exchanges between him and the Registrar concerning his
complaint regarding the procurement of an interpreter's services.
[15] The email exchanges indicate that the Registrar took steps to obtain the
services of an interpreter, but she also noted in one email that it appeared Mr
Changsen had issues with the interpreters the Court had obtained. The Registrar
pointed out to him that “ the service we offer is to provide an interpreter , [but]
unfortunately we cannot look for one that meets your personal requirements”.
[16] Mr Changsen also complains that when Judge Wille had dismissed his
application, no mention was made of any of the documentary evidence he and his
lawyers had submitted. According to Mr Changsen, the unfairness of the
3 In terms of sections 21 (1) and 4 (1) of the Promotion of Equality and Prevention of Unfair Discrimination Act,
4 of 2000.
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proceedings in the Equality Court entailed the Judge failing to decide whether
“the administrative agency” had:
(a) made mistakes in applying the laws and regulations;
(b) insufficient evidence available to it;
(c) violated statutory procedures;
(d) exceeded its authority;
(e) abused its power; and
(f) “obvious(ly) misconducted (itself)”.
The section 17 dismissal of the complaint
[17] It appears that, in response, Judge Wille simply produced his detailed
judgment setting out the reasons for dismissing the application on the ground that
the Equality Court lacked the requisite jurisdiction.
[18] As stated, the Acting Chairperson dismissed the complaint in terms of
section 15(2)(c) of the Act. He noted that the complaint related to two issues:
first, the concern that Mr Changsen did not receive the assistance of an interpreter
during the Equality Court proceedings, and, secondly, his dissatisfaction that the
Court did not consider the evidence he had placed before it . The Acting
Chairperson also noted what was said in Judge Wille’s judgment.
[19] After careful consider ation of the submissions , the Acting Chairperson
concluded that the issues raised by Mr Changsen related to the manner in which
the case was managed and decided. It was concluded further that those were
matters that may be pursued through the ordinary appeal or review processes, but
they d id not constitute judicial misconduct under the Act. Consequently, the
complaint was dismissed.
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The appeal
[20] Mr Changsen submits that the decision to dismiss his complaint was made
without conducting a substantive investigation and evaluation of the evidence
submitted by him, and “violates the due process requirements of sections
17(3)(c), 17(4) and 18(3) of [the Act]”. They require that the Commission or its
Chairman must fully examine all facts, evidence and written statements submitted
by both parties before making a decision.
[21] Mr Changsen repeats his earlier assertions made in his complaint regarding
Judge Wille’s alleged misconduct. These comprise the Judge’s alleged failure to
afford him interpretation services so that he could understand the proceedings;
and the Judge’s failure to consider the documentary evidence. Overall, Mr
Changsen contends that these resulted in him not having a fair hearing.
[22] Similar assertions are made in relation to the Acting Chairperson’s
dismissal of the complaint. Mr Changsen submits that the Acting Chairperson had
failed to provide a substantive explanation of “the evidence” which had been
submitted, and that this constitutes “impropriety”. He submits further that there
has been a f ailure to investigate or verify the matter before its dismissal, as
required by sections 17(3)(b)-(c) of the Act. This was because the complaint was
dismissed on the grounds that it could be resolved through appeal or review
proceedings, without the Acting Chairperson “investigating the substantive facts
raised by the [complainant]”.
Judge Wille’s response to the appeal
[23] With regard to the complaint about the lack of an interpreter, Judge Wille
explains that the record will reflect that he bent over backward to accommodate
the complainant and his legal representative , because the complainant was
“highly emotional about th e matter”. The Judge also records that at all material
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times during his appearances the complainant was represented by a very
experienced attorney.
[24] In summary, Judge Wille points out that all the pleadings were in English;
Mr Changsen was legally represented; the parties’ legal representatives requested
that the limited interlocutory jurisdiction issue be decided first, and they agreed
that this issue would be presented only by way of legal argument; and the Heads
of Argument were filed in English . Consequently, according to the Judge, the
complaint is difficult to understand, as all the parties had agreed that no evidence
would be tendered and that the Court's jurisdiction would be decided first as a
discrete issue, without the tenderi ng of any evidence or documentation .
Furthermore, in light of this agreement, the parties agreed that no interpreter was
necessary. The Judge states that the complainant had not at any stage informed
the Judge that he did not follow the legal arguments, or that he was unable to
adequately instruct his legal representative.
[25] Judge Wille states further that Mr Changsen’s legal representative had
placed on record during the hearing that he holds instructions to apply for
condonation and to appeal the complainant's convictions and sentences in the
lower court based on his no -contest guilty pleas. Thus, contends Judge Wille, it
was, in effect, conceded that the High Court, sitting as the Equality Court, did not
have the requisite jurisdiction to determine the matter.
Evaluation
[26] The complaint regarding lack of interpretation is misconceived. As appears
from Judge Wille’s explanation, the issue for adjudication in the Equality Court
was a narrow one, limited to determining the Court’s jurisdiction. Moreover, the
parties had agreed that the issue would be decided purely on legal argument and
without recourse to any oral or documentary evidence.